# Amicus Curiae Brief — Griffith v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 314

## Text

No. 85-5221 ('' /

IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1986

RANDALL LAMONT GRIFFITH.
Petitioner
Vv.

COMMONWEALTH OF KENTUCKY,
Respondent

ON WRIT OF CERTIORARI TO THE
KENTUCKY SUPREME COURT

BRIEF AMICI CURIAE IN
SUPPORT OF THE RESPONDENT
BY THE NORTH CAROLINA ATTORNEY
GENERAL AND THE 21
AMICI THAT APPEAR ON THE INSIDE COVER

Lacy H. Thornburg
Attorney Genera!

Joan H. Byers

Special Deputy Attorney General
Counsel of Record

P.O. Box 629

Raleigh, North Carolina 27602
Telephone: (919) 733-6012

Alabama by Charles A. Graddick, Attorney General
Arizona by Robert K. Corbin, Attorney General
Arkansas by John Steven Clark, Attorney General
Connecticut by John I. Kelly, Chief State’s Atorney
Delaware b M. Oberly, Attorney General
Hawaii by Corinne K. A. Watanabe, Attorney General
Illinois by Neil F. Hartigan, Attorney General
Indiana by Linley E. Pearson, Attorney General
lowa by Thomas J. Miller, Attorney General

Kansas by Robert T. Stephan, Attorney Genera!
Louisiana by William J. Guste, Jr., Attorney General
Maryland by Stephen H. Sacks, Attorney General
Mississippi by Edwin L. Pittman, Attorney General
Missouri by William L. Webster, Attorney General
Oklahoma by Michael Turpen, Attorney General
South Carolina by Travis Medlock, Attorney General
Tennessee by W. J. Michael Cody, Attorney General
Texas by Jim Mattox, Attorney General

Utah by David L. Wilkinson, Attorney General
Virginia by Mary Sue Terry, Attorney General
Wyoming by Archie G. McClintock, Attorney General

QUESTION PRESENTED

SHOULD THE HOLDING IN BATSON y.
KENTUCKY, 476 U.S (1986), BI
GIVEN RETROACTIVE EFFECT IN
CASES PENDING ON DIRECT
APPEAL?

TABLE OF CONTENTS

CUTTS BIEN F URRSEIES BEEP ccccccececccccccesesccsescccessescescesess

TAREE Gi AU TERRE 6 BID cccececccccccccscccccsccsccssscccssees

INTEREST OF THE AMICI CURIAE..........

STATEMENT OF THE CASE......

SUMMARY OF THE ARGUMENT ........

ARGUMENT

BATSON V. KENTUCKY SHOULD NOT BE
APPLIED RETROACTIVELY TO CASES
NOW PENDING ON DIRECT APPEAL.

UNDER THE "CLEAR
BREAK" STANDARD
OF UNITED STATES
v. JOHNSON, BAT-
SON SHOULD NOT
BE GIVEN RETROAC
TIVE EFFECT

2 STOVALL v. DENNO
CRITERIA ALSO
MANDATE PROSPEC
TIVE APPLICATION
OF BATSON

CONCLUSION

. Il

ill
TABLE OF AUTHORITIES

Allen v. Hardy, U.S _.,

106 S.Ct. 2878 (1986) ..... 2,6,8,10,12,15.17,18

Anderson v. Bessemer City, 470 U.S
105 S.Ct. 1540 (1985)

Arsenault v. Massachusetts, 393 U.S. 314 (1969)

Batson v. Kentucky, U.S
106 S.Ct. 1712 (1986)

Bloom vy. Illinois, 391 U.S. 194 (1968)
Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985)

Caldwell v. Mississippi, 472 U.S. n.7, 105 S.Ct
2633, n.7 (1985)

Castaneda v. Partida, 430 U.S. 482. 502. n.1 (1977)

Commonwealth v. Soares, 377 Mass. 461.
387 N.C.2d 499 (1979)

Daniel v. Louisiana, 420 U.S. 31 (1975)

De Stefano v. Woods, 391 U.S. 145 (1968)

Desist v. United States, 394 U.S. 244 (1969)

20

~

1O

Passim

1]

IV
Dunaway v. New York, 422 U.S. 200 (1979) ooo.ccccccccccccocceee. 7
Edwards v. Arizona, 451 U.S 477 (1981) .o.cccccccccccccccccccceceeee: x

Esquivel v. McCotter, 791 F.2d 350 (Sth Cir.
1986), cert.denied, US.

106 S.Ct. 2294 (1986) coveccsccnomceeseneesensssmneneeee 15
Furman v. Georgia, 408 U.S. 238 (1972)....... mm 1
Gideon v. Wainwright, 372 U.S. 335 (1963) .........00cc0c0000. DI
Gilliard v. Mississippi, 464 U.S. 867 (1983) .... 16
Gosa v. Mayden, 413 U.S. 665 (1973).... 8,10,11,12
Gregg v. Georgia, 428 U.S. 153 (1976)...... 13,14
Ham v. South Carolina, 409 U.S. 524 (1973).. 3
Hankerson v. North Carolina, 432 U.S. 233 (1977) 10,11
Ivan v. City of New York, 407 U.S. 203 (1972) 10
Johnson v. New Jersey, 384 U.S. 719 (1966) 10,12
Jurek v. Texas, 428 U.S. 262 (1976) 13

Katz v. United States, 389 U.S. 347 (1967) 9

Larry Smith v. McCotter, 86-1615, F.2d
(Sth Cir. 1986), stay denied, U.S

(August 21, 1986)... 14
Linkletter v. Walker.381 U.S. 618 (1965) 6
Lockhart v. McCree. U.S

106 S.Ct. 1758 (1986) L]

McCray v. New York, 461 U.S. 961 (1983) 4.9.16
Michigan v. Booker, No. 85-1028 (June 30, 1986) 8
Morris v. Slappy, 461 U.S. 1 (1983) 22
Patton v. Yount, 467 U.S. 1025 (1984) 2
People v. Wheeler, 22 Cal.3d 258, 148 Cal. Rpt:

890, 583 P.2d 748 (1978 4%
Pulley v. Harris, 465 U.S. 37 (1984 13
Reed v. Ross, 468 U.S. 1 (1984 18
Regents of University of California v. Bakke, 438

U.S. 265. n.§3 (1978 l¢
Reynolds v. United States, 98 U.S. 145 (1879 20

Ristaino v. Ross. 424 U.S. §89 (197%

vi
Rosales - Lopez v. United States, 451 U.S. 182, (1981)..... 20

Shea v. Louisiana, US , 105 S.Ct. 1065 (1985) .6,7,9

Solem v. Stumes, 465 U.S. 638 (1984) 6.7

State v. Crespin, 94 N.M. 486, 612 P.2d 716

(N.M. App. 1980) 5
State v. Jackson, N.C

343 S.E.2d 814 (1986) 6,18
Stovall v. Denno, 388 U.S. 293 (1967) 2,3,6,9,15.17
Strauder v. West Virginia, 100 U.S. 303 (1880) 15

Swain v. Alabama, 380 U.S
202 (1965) 2,3,4,5.8.15.16.17.18,2

a

Taylor v. Louisiana, 419 U.S. 522 (1975)
Tehan v. Shott, 382 U.S. 406 (1966) 1O

Thompson v. United States, U.S

105 S.Ct. 443 (1984) 4.16
Turner v. Murray, 476 U.S
106 S.Ct. 1683, (1986) 12,13

United States v. Hastings, 461 U.S. 499 (1983 22

United States v. Johnson. 457 U.S. 538 (1982 2. 3.6.7.9.17

United States v. Leslie, 783 F.2d 541 (1986 $15
United States v. Peltier, 422 U.S. 531. 7
United States v. Wade. 388 U.S. 218 (1967 18

Williams v. United States, 401 U.S. 646, 653 (19

Witherspoon v. Illinois, 391 U.S. 510 (1968

MISCELLANEOUS

Blackstone Commentaries 69 (15th ed. 180 7
“Use Of The Peremptory Challenge”, 79 ALR3d 14
S32» 97/1077
nson, Black Innocence And The White Juror. ®
Michigan Law Review 1611 (1985
‘5 es ( + ‘ i A 7

IN THE
SUPREME COURT OF THE UNITED STATES

(jctober |

Petitioner

Respondent

BRIEF OF THE AMICI STATES
IN SUPPORT OF RESPONDENT
COMMONWEALTH OF KENTUCKY)

INTEREST OF THE AMICI CURIAE

The amici curiae are States which have, in the
administration of their systems of justice, relied on the
holding in Swain v. Alabama in regulating the use by the
State of the State’s peremptory challenges in cases and whose
court systems will be seriously disrupted by a retroactive
application of Batson v. Kentucky.

STATEMENT OF THE CASE

The amici States adopt the Statement of Case as sect
forth by the respondent Commonwealth of Kentucky

SUMMARY OF THE ARGUMENT

Swain v. Alabama, correctly or incorrectly, was
perceived by the State and lower Federal Courts to hold that a
prosecutor, without violating the Equal Protection Clause of
the Constitution, could, on a case specific basis, challenge
blacks or other minorities on the basis of race. Batson vy.
Kentucky has prohibited such conduct and has radically
changed the evidentiary burden of a defendant in showing an
Equal Protection Violation based on the prosecutor's use of
peremptory challenges

Batson v. Kentucky represents a “clear break" with
past precedent and therefore, under the threshold test set out
in United States v. Johnson, should be given prospective
effect only

If the retroactivity issue is determined by resorting to
the three factor test of Stovall v. Denno, the decision of
Batson still should be deemed by this Court to be prospective
in effect only. None of the three factors favors holding
Batson retroactive

In Allen v. Hardy this Court assumed Batson had
some impact on the truth finding function of the jury
However, even as to capital cases, due to the other safeguards
in place in a trial, the decision in Batson will have no sub
stantial impact on the truth finding function of the jury

Prosecutors and State Courts relied on the apparent
holding in Swain dealing with both when the Constitution is
violated by a prosecutor's conduct and what evidentiary
showing must be made to ~~ an Equal Protection viola-

wain

tion. The interpretation of by the prosecutors that the
Equal Protection Clause permitted case specific peremptory
challenges based on race is not unreasonable since that view
of Swain was also held by the State and Federal Courts, as
well as the legal commentators who reviewed the issue.

Finally, the impact of a retroactive application of
Batson, even when limited to cases now pending on direct
nm will be significant. Due to the changes made by

atson as to the defendant and prosecutor must show in
litigating an Equal Protection violation claim, the vast
majority of the cases containing a Batson issue will have to
be remanded for an evidentiary hearing. Since the prosecutor
likely will be unable, several years after a voir dire, to
explain why he used his peremptories in the manner he did,
many new trials must be granted in cases. Victims and
witnesses will once more be required to undergo the incon-
venience and trauma of testifying. Thus, the impact on the
system of justice will be significant. The Stovall v. Denno
test, like the “clear break" threshold rule of United States v.
Johnson mandate that Batson v. Kentucky not be given
retroactive effect for those cases now pending on direct

appeal
ARGUMENT

IN CASES PENDING ON DIRECT
APPEAL BATSON V. KENTUCKY
SHOULD NOT BE GIVEN RETROAC.
TIVE EFFECT.

In 1965, in Swain v... sbama, 380 U.S. 202 (1965)
in an Opinion written by Justice White, this Court stated in
Part Il of the opinion that:

“...we cannot hold that the striking of Negroes
in a particular case is a denial of equal protec
tion of the laws. In the quest for an impartial
and qualified jury, Negro and white, Protestant

amd Catholic, are alike subject to being
challenged without cause. To subject the
prosecutor's challenge in any particular case
to the demands and traditional standards of the
Equal Protection Clause would entail a radical
change in the nature of the operation of the
challenge...

In light of the purpose of the peremptory
system and the function it serves in a plural-

istic society in connection with the institution
of jury trial, we cannot hold that the constitu-
tion requires an examination of the prosecu-
tor’s reasons for the exercise of his challenges
in any given case.” 380 U.S. at 222.

The Court's holding in Part Il of Swain was subse-
quently universally viewed by the State and Federal Courts,
as well as by legal commentators, as holding that a prosecu-
tor’s use of the peremptory challenge in a single case to
remove blacks from the venire was not a violation of the
Equal Protection Clause of the Constitution. See “Use Of
The Peremptory Challenge’, 79 ALR3d 14, §3, p. 27 (1977).
Johnson, Black Innocence And The White Juror, 83 Michi-
gan Law Review 1611 (1985). ("Under Swain v. Alabama, a
prosecutor may deliberately use his peremptory challenges to
exclude all blacks from a jury trying a black defendant’, p
1614); McCray v. New York, 461 U.S. 961, 964 (1983). ("In
Swain, a closely divided Court held that the prosecutor's use
of peremptory challenges to strike Negroes from the jury
panel in one particular case did not deny the defendant equal
protection of the laws.") (Marshall, J. dissenting from denial
of certiorari); Thompson v. United States, US. 105
S.Ct. 443 (1984); ("Swain - whose rule, if without other
virtue, was at least clear...") p. 446; (Brennan, J. dissenting
from denial of certiorari).

The State Courts which declined to follow Swain, on
the basis of State constitutional protections, asserted that
Swain held that a prosecutor could, without violating the
Equal Protection Clause, stnke a black juror on the basis of
his race from the venire in a particular case if that stnke was
for a trial purpose. People v. Wheeler, 22 Cal.3d 258, 148

Cal. Rptr. 890, 583 P.2d 748 (1978); Commonwealth v.
Soares, 377 Mass. 461, 387 N.C.2d 499 (1979); State v.
Crespin, 94 N.M. 486, 612 P.2d 716 (N.M. App. 1980).
Even after certiorari had been in the case ¥.
Kentucky, U.S. __, 105 S.Ct. 2111 on April 22, 1985,
the Fifth Circuit, en banc, in United States v. Leslie, 783 F.2d
$41 (1986) reaffirmed its adherence to Swain. In so doing,
the Fifth Circuit stated, “Plainly, the Court in Swain
held that a prosecutor may peremptorily challenge on racial
(or similar group) grounds so long as he does so on ‘consid-
erations related to the case he is trying, the particular defen-
dant involved and the particular crime charged’ Swain.” 783
F.2d at 548.

On April 30, 1986, this Court announced its decision
in Batson v. Kentucky, U.S. , 106 SCtr 1712
(1986). In this case the majority side stepped the Sixth
Amendment issue which was the basis for the grant of
certioran and instead held that it is a violation of the Equal
Protection Clause for a prosecutor in a particular case
peremptonily to excuse from a jury blacks solely on the basis
of race when the defendant is black. The Court specifically
Stated that to the extent Swain was inconsistent with Batson,
Swain was overruled. 106 S.Ct. at 1725, n.25.

The amici represent states whose courts had relied
upon Swain v. Alabama and the continued body of case law
which had reaffirmed the validity of Swain in ruling on equal
protection claims based on use of a prosecutor's peremptory
challenge and whose prosecutors had relied upon Swain and
its progency im exercising their peremptory challenges in a
manner they felt consistent with representing the State in a
particular case. ‘atson v. Kentucky, supra is now the law
and will be scrupulously followed. However, due to the
substantial break with past precedent contained in Batson, the
amici assert that Batson should not be applied retroactively
to cases now pending on direct appeal in the State and
Federal Courts.

UNDER THE "CLEAR BREAK"
STANDARD OF UNITED
STATES V. JOHNSON, BATSON
SHOULD NOT BE GIVEN
RETROACTIVE EFFECT.

As noted in State v. Jackson, NC , 943
S.E.2d 814 (1986), “the Supreme Court has not been com-
pletely consistent i its approach to the question [of retroac
tivity|’. However, it would appear that as to those cases to
which finality! has attached the three factors set out in
Stovall v. Denno, 388 U.S. 293 (1967) are applied to deter-
mine the appropriateness of retroactivity of a new rule of the
Court to a case pending in a collateral proceeding. See
Solem v. Stumes, 465 US. 638 (1984), Allen v. Hardy, _ |
_, 106 S.Ct. 2878 (1986) (per curiam). In matters not final at
the time of the ruling, the approach to retroactivity Te
employed in United States v. Johnson, 457 U.S. $38 (1982
and Shea v. Louisiana, US. . 105 S.Ct 1065 (1985)
should be apphed

In United States v. Johnson, supra, the court re
viewed tS pnor retroactivity decisions and stated that an
analysis of post Linkletter? cases established that the answer
to retroactivity im three narrow categories of cases was not
determined by Stevell critena, but rather through the applica
tion of a threshold test. If the decision merely apphed settled
precedents to new and different factual situations, application

'The Court has defined final to mean where yudgment of conviction
was rendered. availability of appeal exhausted. and ume for pewnon for
cervoan had evther elapsed of cernoram had been denied before the
decision. Lindlewer v. Walker, 381 US. 618 (1965)

“Linklewer v. Walker, 381 US. 618 (1965). After determining
retroactivity was merther required of fortudden by the Constitunon, the
Court in LinAlemer, stated « was necessary t© “weigh the merits and
Gemerts m cach case by looking tw the prior history of the rule in
juestion, its purpose and effect, and whether retrospective operation «
further of retard tts operation to determine whether retroactive appl aon
was called for

of the rule will be retroactive. See, for instance: Dunaway
v. New York, 422 U.S. 200 (1979). Also, retroactive effect
must be given to a ruling that a trial court lacked the basic
authority to convict or punish. See Furman v. Georgia, 408
U.S. 238 (1972). Where, however, the case announces an
entirely new and unanticipated principle of law - a clear
break with the past - the decision will almost invariably be
applied prospectively only. A “clear break" has been recog-
nized only when a decision explicity overrules a past prece-
dent of the Court, or disapproves a practice the Supreme
Court arguably had sanctioned in prior cases or overturned a
long standing and wide spread practice to which the Court
has not spoken, but which a near unanimous body of lower
Court authority expressly approved. The precedent upon
which this “clear break" rule was fashioned was earlier
described as a decision which "constituted a sharp break in
the line of earlier authority or an avulsive change which
caused the current of the law thereafter to flow between new
banks.” United States v. Peltier, 422 U.S. 531, 544 (Bren-
nan, |., dissenting). Likewise, in Solem v. Stumes, 465 U.S.
638 (1984) the Court commented on the concept of "clear
break". The Court noted that because Edwards vy. Arizona,
451 U.S. 477 (1981) did not “overrule any prior decision or
transform standard practice... it [was] not the sort of ’clear
break’ case that is almost automatically non-retroactive.” 465
U.S. at 647.

Under the "clear break" rule set out in United States
v. Johnson, supra, (derived from prior precedent of the
Court, obliquely recognized in Stumes, and expanded beyond
the scope of the Fourth Amendment by Shea), Batson, by its
overruling of Swain v. Alabama, is precisely the type of clear
break case which should be given prosepctive application
only.5 See: Daniel v. Louisiana, 420 U.S. 31 (1975)

3The State cases which have examined the retroactivity issue in

Batson have generally deemed Batson to be nonretroactive on the basis

of “clear break". State v. Jackson, supra. (Batson is a clear break case

since it “explicity rejected to the prior Swain requirement and unequivo-

cally overruled Swain.)" 343 S.E.2d at 825). Bowden v. Kemp, 256 Ga.

70, 344 S.E.2d 233 (1986). ("The Supreme Court of the United States did
continued

(Ruling forbidding exclusion of women from juries not to be
applied retroactively); Gosa v. Mayden, 413 U.S. 665 (1973),
(Ruling granting civilian trials to military personnel accused
of non service related crimes not to be applied retroactively),
De Stefano v. Woods, 391 U.S. 145 (1968) (Ruling guaran-
teeing a right to a jury trial in certain cases not to be applied
retroactively).

Griffith and his amici suggest that Batson cannot be
deemed a “clear break” both because it was allegedly fore-
shadowed by a series of State and Federal cases and because
Batson merely redefines a procedural, evidentiary burden.
Such a view of Batson is untenable. In Allen v. Hardy, a
majority of this Court recognized Batson to be “an explicit
and substantial break with prior precedent.” 106 S.Ct. at
2879. Batson v. Kentucky, supra, (White, J. concurring).

While McCray v. New York, 461 U.S. 961 (1983)
(denial of certiorari) and several state and federal cases
certainly suggested that Swain was becoming the target of
criticism, no State or Federal case had, on the basis of federal
law, claimed that Swain no longer controlled how an equal
protection claim on the basis of peremptory challenges was to
be decided. See, for instance Booker v. Jabe, 775 F.2d 76°
(6th Cir. 1985) Yemanded sub nom Michigan v. Booker, o.
85-1028 (June 30, 1986); People v. Wheeler, supra. The ‘act
that the overruling of Swain might have been urged by

continued from above ,
not hold Batson to apply retroactively and we do not view it as being so

intended.” 344 §.E.2d at 234); Siate v. Wagster, 489 So.2d 1299 (La.
App. 1986). Séate v. Calvin Hawkins, S.C. . S.E.2d
____GUune 6, 1986). Likewise, the Fifth Circuit Court of Appeals held
Batson nonretroactive on collateral review in several death penalty cases
due to Batson’s substantial departure from prior precedent. Smith vy.
McCotter, 86-1615, F.2d _—(1986), stay denied, US. _,
(August 21, 1986); Esquivel v. McCotter, 791 F.2d 350 (Sth Cir.), cert.
denied, US. _, 106 S.Ct. 2294 (1986). See also Simpson vy.
Massachusetts, 795 F.2d 216 (ist Cir. 1986). Other States are presently
litigating the retroactivity issue. See People v. Kirk, 98 lll, Dec. 64, 493
N.E.2d 1085 (1986). Some others have simply assumed retroactivity
without examining the issue. People v. Hockett, 503 N.Y.S.2d 995
(1986); Saadig v. State, 387 N.W.2d 315 (1986).

commentators or lower court dicta does not in any way make
Batson \ess a clear break". See, e.g. Desist v. United States,
394 U.S. 244 (1969).

Likewise, Griffin’s claim that Batson, being a mere
realignment of an evidentiary standard dealing with a known
constitutional principle, is not a "clear break" case is merit-
less. On this logic Katz v. United States, 389 U.S. 347
(1967) being a mere shifting of an evidentiary standard
dealing with a known constitutional principle - The Fourth
Amendment - would also have required retroactive applica-
tion. See Desist v. United States, supra. The fact remains,
as this Court stated in Allen v. Hardy, “the rule in Batson v.
Kentucky is an explicit and substantial break with past
precedent’, 106 S.Ct 2880. As such, it is a “clear break" case
and under United States v. Johnson, and Shea v. Louisiana,
is entitled to prospective application even as to cases pres-
ently pending on direct appeal.

2. STOVALL V. DENNO CRITE-
RIA ALSO MANDATE PRO-
SPECTIVE APPLICATION OF
BATSON.

The amici assert that the principles set out in United
States v. Johnson are the rules by which retroactivity should
be determined. However, assuming the Stovall v. Denno‘
three part test is the appropriate measure to use in determin-
ing retroactivity instead of the “clear break" analysis in
United States v. Johnson, Batson still requires prospective
application.

A. THE PURPOSE TO BE SERVED
BY THE NEW STANDARD.

The first prong of the Stovall criteria examines the
purpose for the new standard. Complete retroactive effect is
most appropriate where a new constitutional principle is

4justice Burger, dissenting in Batson v. Kentucky, employed the
Stovall criteria in showing the necessity for prospective application only
of Batson.

10

“designed to avert the clear danger of convicting the inno-
cent." Tehan v. Shott, 382 U.S. 406, 416 (1966). “Where
the major purpose of new constitutional doctrine is to over-
come an aspect of the criminal trial that substantially impairs
its truth-finding function and so raises serious questions
about the accuracy of guilty verdicts in past trials, the new
rule frequently has been given complete retroactive effect.”
Williams v. United States, 401 U.S. 646, 653 (1971).
(Emphasis added). However, as emphasized, the impairment
to truthfinding must be substantial, and not simply incidental
to the main basis for the new standard.

Retroactivity is not required by a determination "that
the old standard was not the most effective vehicle for
ascertaining the truth, or that the truth determining process
has been aided somewhat by the new standard, or that one of
several purposes in formulating the new standard was to
avoid distortion in the process." Gosa v. Mayden, 413 U.S.
at 680.

Batson does have some “bearing on the truth finding
function of a criminal trial". Allen v. Hardy, 106 SCt at 2880.
This, however, is not the major purpose for the new standard
enuciated in Batson. The decision mainly serves other values
- Strengthing the public confidence in the administration of
justice and protecting minority citizens called into jury panels
from discrimination by the State. Batson v. Kentucky, supra.

Whether a Constitutional rule of criminal procedure
sufficiently enhances the reliability of the truth finding
process to require retroactive application is necessarily a
matter of degree. Johnson v. New Jersey, 384 U.S. 719
(1966). The cases in which this Court has found such a
substantial effect on the accuracy of the truth finding process
have generally involved those issues either giving an accused
the ability to present his case effectively. [See Arsenault v.
Massachusetts, 393 U.S. 314 (1969)}; or placing of funda-
mental burdens of proof on an accused. [Hankerson y.
North Carolina, 432 U.S. 233 (1977); Ivan v. City of New
York, 407 U.S. 203 (1972).] Batson simply does not deal
with an issue which has the type of profound impact on the
truth finding function that is present in those cases where this

1]

Court has ordered complete retroactivity such as Hankerson,
Furman, or Gideon v. Wainwright, 372 U.S. 335 (1963).

Amici for Griffith point to studies which indicate
blacks are more likely to be for the “underdog” and suggest
these studies mandate a finding that the truth finding function
had been substantially impaired by pre-Batsan practice since
blacks, allegedly, are more likely to find an accused innocent.
The studies relied upon by Griffin are generally over ten
years old and are based on suspect methodology. See Lock-
hart v. McCree, US. , 106 S.Ct. 1758 (1986).
However, even if the studies are worthy of some considera-
tion, they do not require a finding that peremptory strikes of
blacks substantially impair the truth finding process. The
Studies are no more compelling than the sociological studies
presented in the case of Taylor v. Louisiana, 419 U.S. 522
(1975) which caused this Court to conclude, at footnote 12
"...Controlled studies of the performance of women as jurors
conducted subsequent to Ballard have concluded that women
bring to juries their own perspectives and values that influ
ence both jury deliberation and result." 419 U.S. at 532.
Taylor, in Daniel v. Louisiana, 420 U.S. 31 (1975) was
given prospective application only. In Gosa v. Mayden.
supra, this Court refused to hold retroactive the Court's
decision granting military personnel the right to a civilian
trial with all of the added procedural protections afforded by
a civilian trial. In De Stefano v. Woods, 392 U.S. 631
(1968), the Court refused to hold retroactive the right to a
jury tnal in some cases. This Court also refused to give
retroactive effect to its ruling in Bloom vy. Illinois, 391 U.S.
194 (1968) which extended the right to jury trials in serious
criminal contempt situations. These cases clearly had as
much, if not more, impact on the truth finding function of a
trial as does the new standard in Batson.

If the right to a civilian jury trial, and the right to have
women - 53% of the population - on a jury are not matters
substantially impairing the truth finding function, then the
peremptory exclusion of one or more minority citizens from a
petit jury cannot be so deemed. A defendant is not entitled to
a sympathetic jury - only a fair one. Lockhart v. McCree
supra. Nothing presented by Griffith shows the juries
selected under pre Batson procedures were unfair

The amici for Griffith suggest that, notwithstanding
other criminal cases, the capital punishment cases mandate
that Batson be made retroactive on cases pending direct
appeal because of the “unacceptable risk...infecting the
capital sentencing proceeding... Turner v. Murray, 476 U.S

, 90 L.Ed.2d 27, that results from the exclusion of minori
ties from capital juries." Brief of Amici, NAACP Legal
Defense Fund and American Jewish Congress, p.33. How
ever, while a sentencing jury does make a “highly subjective,
unique, individualized judgment regarding punishment that a
particular person deserves", Caldwell v. Mississippi, 472
U.S. n.7, 105 S.Ct. 2633, 2645-46 n.7 (1985); Turner v.
Murray, 476 U.S. _, 106 S.Ct. 1683, 1687 (1986), this does
not raise an unacceptable risk that a Batson violation will
have a substantial impact on the sentence imposed

In Allen v. Hardy this Court acknowledged the rule in
Satson “may have some bearing on the truth finding function
of a cnmuinal tal.” 106 SCt. 2880. The question, however of
“whether a constitutional rule of criminal procedure does or
does not enhance the reliability of the fact finding process is
necessarily a matter of degree..." Johnson v. New Jersey.
384 U.S. 719, 728 (1966). This Court stated that, in deter
mining retroactivity, the Court “must take into account.
among other factors, of the extent to which other safeguards
are available to protect the integrity of the truth determining
process at tral”. 384 U.S. at 729, see also, Gosa v. Mayden,
supra. Looking at the other factors in place at the time of
trial of these pre-Batson cases, there is no unacceptable risk
that a sentence of death has been inappropriately meted out in
any case where peremptory excusal of blacks from the petit
jury had occurred

A prosecutor's peremptory strikes are not the only
factor molding a capital sentencing jury. The defense coun
Sel, who possesses at least an equal number and often a larger
number of peremptory challenges5, is also exercising strikes
in a manner he perceives is calculated to bring about the
Seating of a jury sympathetic to his point of view. The Trial
Court likewise constitutes a safeguard against an aberrant

Ky. Rule Crim Proc. 9.36, 9.38. 9.40

jury verdict. The Court oversees the voir dire and may
exercise, where appropriate, his authority to uncover bias
among potential jurors. Prior to Turner v. Murray,
__US.___, 106 S.Ct. 1683 (1986), the trial court had the
duty in certain cases to allow voir dire into possible racial
prejudice of the potential jur»rs, Ham v. South Carolina, 409
U.S. 524 (1973) and always ‘ed the discretion to inquire into
racial prejudice even absent a showing “that racial prejudice
might infect [the] trial”. Ristaino v. Ross, 424 U.S. 589
(1976). The Court also exercises his Supervisory authority
during trial to ensure a fair trial. The sentencing hearing
itself, while more subjective than a guilt determination,
requires a jury® to consider a series of specific questions
reaching their sentencing decision thus guiding the jury’s
discretion in non-racial channels. See G ~~ 428
U.S. 153 (1976). Jurek v. Texas, 428 U.S. 162 (1976). The
Court’s instructions to the jury in death sentencing proce-
dures contain admonitions to the jurors with respect to the
necessity to be impartial.

Finally, the majority of the States have by case law,
court rule, or statute, mandated porportionality review of the
sentences of death imposed by the trial courts. Pulley v.
Harris, 465 U.S. 37 (1984). These statutes generally specifi-
cally require that the case be reviewed by the Appellate Court

Sin some States, Judges, not juries make the final punishment
determination in a capital case. Obviously capital sentences from these
States cannot be deemed tainted by possible Batson error. Alabama, Ala.
Code § 13A-5-45 (1982); Arizona, Ariz. Rev. Stat Ann. § 13-703(B)
(1985); Florida, Fla. Stat. § 921.141(3) (1970); Indiana, Ind. Code §
35-S0-2-9e) (1986 Cum. Supp.); Montana, Mont. Code Ann. § 46-18-30
(1985 Supp.); Nebraska, Neb. Rev. Stat. § 29-2520 (1985). In other
States, the trial courts may set aside the jury's sentencing judgments.
See, for instance, California, Cal. Penal Code § 190.4(e) (1977); Arkan-
sas, Ark. Stat. Ann. § 43-2301 (Supp. 1973, Supp. 1975); Colorado, Colo
Rev. Stat. § 16-11-103(1)(a) (1985 Cum. Supp.); Virgima, Va Code §
19.2-264.5 (1983).

14

to ensure that arbitiariness, passion, or prejudice did not play
a role in the sentence of death.7

Porportionality review alone “substantially eliminates
the possibility that a person will ve sentenced to die by the
action of an aberrant jury." Gregg v. Georgia, 428 US. at
206; (Stewart J, plurality). Thus, the other safeguards in
place during a sentencing hearing are sufficient to guard the
integrity of the sentencing process in pre-Batson capital
Cases.

The only basis for suggesting the capital sentencing
had been impaired by pre-Batson practices comes from the
sociological studies cited by Griffith and his amici. How-
ever, these studies are simply too old and too suspect due to
methodology used to serve as a basis for this Court’s deter-
mining Batson must be applied retroactively in the capital
cases in the face of these other substantial safeguards which
ensure reliable sentencing decisions. This Court, on at least
two occasions, has allowed an execution to proceed despite
the existence of a Batson claim made on collateral review.
Larry Smith v. McCotter, 86-1615, _ F.2d. ___ (Sth Cir.

7Ala. Code § 13A-5-53(b)(1) (1982); State v. Vickers, 129 Ariz. 506,
633 P.2d 315 (1981); Collins v. State, 261 Ark. 195, 548 S.W.2d 106
(1977); Colo. Rev. Stat. § 16-11-103(7\(b) (1985 Cum. Supp.); Conn.
Gen. Stat. Ann. § 53a-46b(b) (1985); Del. Code Ann. 11 § 4209(g)(2)(a)
(1979); Ga. Code Ann. § 17-10-35(c)(1) (1982); People v. Fetterly, 710
P.2d 1202 (Idaho, 1985); Ill. Ann. Stat. 38 § 9-1(i) (Smith-Hurd 1986
Supp.); Ind. Code Ann. § 35-50-2-9(h) (Burns 1986 Cum. Supp.); Ky.
Rev. Stat. § 532-075(3)(a) (1984); La. Code. Crim. Proc. Ann. § 905.9
(West 1984); Md. Code Ann. 27 § 414(e)(1) (1982); Miss. Code Ann. §
99-19-105(3)(a) (1985) Cum. Supp.); Mo. Ann. Stat. § 38-565.035(3)(1)
(Vernon 1986 Cum. Supp.); Mont. Code Ann. § 46-18-310(1) (1985);
Neb. Rev. Stat. § 29-2521.03 (1985); Nev. Rev. Stat. § 177.055(2)(c)
(1985); N.H. Rev. Stat. Ann. § 630.5(vii)(9) (1983 Cum. Supp.); N_J.
Rev. Stat. § 2c.11-3(e) (1986 Cum. Supp.); N.M. Stat. Ann. § 30-20A
~4(c)(3) (1978); N.C. Gen. Stat. § 15A-2000(d)(2) (1983); Okla. Stat.
Ann. 21 § 701.13(c)(1) (1983); 42 Pa. Cons. Stat. Ann. § 9711(h)(3\i)
(1982); S.C. Code Ann. § 16-3-25(c) (1976); Tenn. Code ann. § 39-2-
205(c) (1982); State v. Wood, 648 P.2d 71 (Utah, 1982); Va. Code §
17-110(c)(1) (1986 Cum. Supp.); Wyo. Stat. § 6-2-103(d) (1977).

15

1986), stay denied, U.S. (August 21, 1986).
Esquivel v. McCotter, 791 F.2d 350 (Sth Cir. 1986), cert.
denied. U.S. , 106 S.Ct. 2294 (1986). These cases

alone indicate that this Court has already determined on
collateral review what the States now claim - that Batson has
no substantial influence on the truth finding function of a jury
even in a capital proceeding. Thus, the first prong of the
Stovall v. Denno test fully supports a pros pective application
of Batson.

B. LAW ENFORCEMENT OFFICIALS
JUSTIFIABLY RELIED ON THE
OLD STANDARD IN SWAIN.

The second prong of the Stovall test requires the
Court to consider the extent of the reliance by law en-
forcemnt authorities on the old standards. The amici States
contend the reliance prong mandates prospective application
of Batson.

As the case law from all the Federal circuits and the
State courts indicate, up until the day Batson was decided,
the courts and prosecutors relied on the Swain standard. See,
for instance United States v. Leslie, supra. See also Batson
v. Kentucky, supra, 106 S.Ct. at 1714-1715, n.1 (1986).
“There is no question that prosecutors, trial judges, and
appellate courts throughout our State and Federal systems
justifiably have relied on the standard of Swain.” Allen vy.
Hardy, 106 S.Ct. 2881. Such reliance by law enforcement on
the Swain decision strongly supports the prospective applica-
tion of Batson.

Griffith and his amici suggest, however, the States are
not entitled to reliance on past precedent since Swain was
simply being used to cloak prosecutors’ racist use of peremp-
tory challenges - a practice forbidden under Strauder v. West
Virginia, 100 U.S. 303 (1880). Thus, opine Griffith’s amici,
prosecutors cynically used the exceedingly burdensome
evidentiary standard suggested in Part III of Swain to insulate
themselves from what they knew to be the improper use of
peremptory strikes and should not be given the benefit of
prospective application of Batson.

16

As noted earlier, the almost universal interpretation of
Swain v. Alabama was that a prosecutor could, without
violating constitutional guarantees of the Equal Protection
Clause, peremptorily excuse blacks in a particular case if the
prosscutor felt on a case specific basis that a black juror
would be unfavorable to the State. See, for instance McCray
v. New York, 461 U.S. 961, 964 (1983) (Marshall, J. dissent-
ing). Thus, the fact that a prosecutor in a particular case may
have used race as a basis for removing a juror from the petit
jury where the prosecutor felt this was proper for the case’s
outcome does not show a disregard for the Constitution as
interpreted by this Court in Swain any more than the defense
lawyer who struck all whites in a case on the assumption
whites would be more harsh on a black defendant showed a
disrespect for the Constitution. Rather, it simply shows a
reasonable reliance - now shown to be wrong - on the appar-
ent holding of this Court and the lower Courts which have
interpreted Swain. The Griffith’s amici’s argument that
prosecutors acted in bad faith, then, simply will not hold up
to analysis.

Nor is a prosecutor’s - or a lower court’s - reliance on
Swain unreasonable in the face of the expressions of discon-
tent about Swain which began to appear with increasing
frequency in the last ten years and in the face of the grand
jury cases dealing with equal protection claims. The State
and Federal Circuit Courts continued to reaffirm Swain’s
validity. This Court continued to deny certiorari in cases
raising Swain-as an issue. See, for instance, Gilliard y.
Mississippi, 464 U.S. 867 (1983) (denial of certiorari);
Thompson y. United States, supra, (denial of certiorari);
McCray v. New York, supra, (denial of certiorari). This
Court continued to cite Swain with apparent approval,
Regents of University of California v. Bakke, 438 U.S. 265,
319, n.53 (1978) or distinguish Swain without Suggesting its
invalidity, Castaneda vy. Partida, 430 U.S. 482, 502, n.1
(1977) (Marshall, J. concurring).

| The fact that Swain was much criticized in Cases and
by legal commentators cannot render law enforcement’s
reliance on Swain’s apparent holding unreasonable. Prosecu-
tors and State Court Judges ought not be charged with the
duty to divine when prior precedent of this Court will be

m BEST AV

17

changed simply on the basis of criticism of that prior prece-
dent. The Blackstonian notion that "the duty of the Court
was not to pronounce a new law, but to maintain and ex-
pound the old one", United States v. Johnson, supra, 542, |
W. Blackstone Commentaries 69 (15th ed. 1809), is equally
applicable to the State’s prosecutors and lower State and
Federal courts.

The reliance on the Swain v. Alabama holding
obviously has left the majority of prosecutors unprepared to
defend their use of peremptory strikes under the Batson
standards. What Swain apparently approved in Part II of the
decision, Batson now deems unconstitutional. In face of the
overwhelming case law and commentary supporting the view
that Swain, as a matter of substantive constitutional law
allowed challenging blacks due to their race in a particular
case if the challenge was related to a prosecutor’s view of the
outcome of the case, this Court should recognize that prose-
cutors and lower courts were acting in good faith in relying
on Swain. This Court should hold that this reliance mitigates
against retroactive application of Batson.

C. RETROACTIVE APPLICATION OF
THE BATSON DECISION WOULD
SERIOUSLY DISRUPT THE AD-
MINISTRATION OF JUSTICE.

The last prong of the three part Stovall test requires an
analysis of "(c) the effect on the administration of justice of a
retroactive application of the new standards." Stovall y.
Denno, 388 U.S. at 297. This criteria also requires a pro-
spective application of Batson even as to cases now pending
on direct appeal.

This Court has already recognized that "retroactive
application of the Batson rule on collateral review of final
convictions would seriously disrupt the administration of
justice." Allen v. Hardy, supra, 106 S.Ct. at 2881. While
Allen v. Hardy has relieved the States from the obligation of
litigating the use of challenges on collateral review, holding
Batson retroactive for cases still pending on direct review
will have a profound impact on the Court systems in the
amici states. In Stovall the Court, in holding United States v.

LABLE COPY

— i

18

Wade, 388 U.S. 218 (1967) nonretroactive, relied on the fact
that numerous hearings would have to be held "with prob-
lems of unavailability of witnesses and dim memories". 388
U.S. at 300. This concern is no less real in the present matter
before the Court. The evidentiary standards for proving an
equal protection violation in jury selection have been radi-
cally shifted. Cases in which the offers of proof were ade-
quate to suffice as to a Swain claim are now Clearly inade-
quate. See State v. Jackson, supra. Since it would appear
that the proof of a prima facie case can be made even if all
the jurors finally seated are not white, see Commonwealth y.
Soares, supra, and since it appears that using the majority of
the States’ challenges in a case on black jurors alone raises a
prima facie presumption of discrimination, Batson v. Ken-
tucky, the vast majority of cases now raising a Batson claim
will have to be remanded to the trial courts for hearings. This
will obviously engender a great deal of litigation in which
voir dires will have to be re-constructed years after the fact
and where the State will be required to “explain reasons for
challenges, a task that would be impossible in virtually every
case since the prosecutor, relying on Swain, would have had
no reason to think such an explanation would some day be
necessary." Allen v. Hardy, 106 S.Ct. at 2881. Even notes
taken during voir dire to protect against such an eventuality
could be insufficiently precise to meet the "clear and reason-
ably specific" requirement of Batson. 106 S.Ct. at 1724,
n.20. In the face of such Specificity requirements, many
deligent prosecutors will be unable to meet the burden
required. This will necessitate new trials in many cases in
which the evidence of guilt was overwhelming - a clearly
unwarranted expenditure of precious judicial resources.

The amici for Griffith suggest there will be little
impact on the administration of justice if the Court limits
Batson’s retroactivity to those cases presently pending on
direct appeal due to the ability of the State to assert proce-
dural bar if the issue has not been perfected on appeal.
However, even if procedural bar can be successfully asserted,
Reed v. Ross, 468 U.S. 1 (1984), the determination of that
issue will engender much litigation. Further, if this ruling
was so foreseeable that procedural bar is appropriate, then
litigation on the issue of ineffective assistance of counsel for
failure to assert a Batson issue is clearly to be anticipated in

19

the States’ courts. Thus, while the disruption of the system
of justice is less due to the barring of the Batson issue on
collateral review, the courts of the amici states will still be
significantly burdened with hearings the prosecutors will be
ill equipped to defend against if this Court gives Batson any
retroactive application. The outcome of many of the hearings
will be new trials simply because a prosecutor or trial judge
did not anticipate correctly what type of record he had to
make prior to the decision in Batson being announced.

Moreover, the procedure to be employed to determine
a Batson violation is uniquely unsuited for retroactive
application. The Court, modifying the test employed to prove
purposeful discrimination in a grand jury selection or in Title
VII case, stated:

...a defendant may establish a prima facie case
of purposeful discrimination in the selection of
the petit jury solely on evidence concerning
the prosecutor’s exercise of peremptory
challenges at the defendant’s trial. To estab-
lish such a case, the defendant must first show
that he is a member of a cognizable racial
group...that the prosecutor has exercised
peremptory challenges to remove from the
venire members of the defendant’s race.
Second, the defendant is entitled to rely on the
fact...that peremptory challenges constitute a
jury selection practice that permits those to
discriminate who are of a mind to discriminate
...Finally the defendant must show that these
facts and any other relevant circumstances
raise an inference that the prosecutor used that
practice to exclude veniremen from the petit
jury on account of their race. This combina-
tion of factors in the empanelling of the petit
jury...raises the necessary inference of purpose-
ful discrimination...Once the defendant makes
a prima facie showing the burden shifts to the
State to come forward with a neutral explana-
tion for challenging black jurors...the prosecu-
tor’s explanation need not rise to the level of
justifying a challenge for cause...But the

20

prosecutor may not rebut the defendant’s
prima facie case...by stating merely he chal-
lenged the jurors of the defendant’s race on
the assumption..that they would be partial to
the defendant because of this shared race... The
prosecutor therefore must articulate a neutral
explanation related to the particular case to be
tried. The trial court then will have the duty to
determine if the defendant has established
discrimination. 106 S.Ct. at 1722-1724.

This test puts much reliance on the credibility deter-
minations of the trial court to make the determination about
the prosecutor’s motives in using his peremptory strikes.

Batson suggests a finding of purposeful discrimina-
tion by a trial judge would be a finding of fact entitled to
great deference. Batson v. Kentucky, 106 S.Ct. at 1724,
n.21; See also Anderson v. Bessemer City, 470 U.S. :
105 S.Ct. 1540 (1985). These credibility determinations in
turn are to be gleaned from supervising voir dire (n.22), and
by observing such things as the “pattern” of strikes against
black jurors, or the prosecutor’s questions and statements
during the voir dire. However, such credibility determina-
tions, as this Court has recognized in reviewing challenges
for cause under Witherspoon v. Illinois, 391 U.S. 510 (1968)
are difficult to make based on a cold transcript of a voir dire
since the demeanor of the juror cannot be recorded.8 Justice
Powell, writing for the majority in Patton v. Yount, noted
“Demeanor plays a fundamental role not only in determining
jury credibility, but also in simply understanding what a
potential juror is saying...Demeanor, inflection, the flow of
questions and answers can make confused and conflicting
utterances comprehensible.” Further, as stated in Reynolds vy.
United States, 98 U.S. 145, 156-157 (1879), "the manner of
the juror while testifying is often times more indicative of the
real character of his opinion than his words. That is seen
below but cannot always be Spread upon the record." De-

See

8Darden v. Wainwright, US. ___, 106 S.Ct. 2464 (1986)

Wainwright v. Witt, 469 US. » 105 S.Ct. 844 (1985 ) Patton v. Yount,
467 U.S. 1025 (1984).

21

meanor as much as the actual answers given is often the basis
for a prosecutor’s peremptory challenge decisions. Inflec-
tions in the voice of the juror and prosecutor, the physical
appearance of the juror, the nonverbal interaction between the
juror and others in the courtroom - the body language -
simply cannot be adequately memorialized in the transcript,
yet these nonverbal considerations are imperative for a fact
finder to know in order to make a reliable credibility determi-
nation as to the reasonableness in assuming a prima facie
case has been established or that the neutral reasons proffered
by the prosecutor are reasonable and truthful. "Trial Courts
face the difficult burden of assessing prosecutors’ motives”:
Batson v. Kentucky, 106 S.Ct. at 1718, (Marshall, J. concur-
ring). This Court ought not make this task more burdensome
by requiring courts to attempt to reconstruct long finished
voir dires. Reading a voir dire transcript? and then listening
to a prosecutor trying as much as two years after the fact to
articulate "seat of the pants instincts", Batson, 106 S.Ct. at
1745, (Rhenquiest, J. dissenting) simply will put the trial
court in no better position than an appellate court in deter-
mining whether purposeful discrimination has been shown.
As this Court has noted, “despite its importance, the ade-
quacy of voir dire is not easily ubject to appellate review..."
Rosales - Lopez v. United Stu.es, 451 U.S. 182, 188 (1981).
“Conclusions as to impartiality and credibility" [must be
reached]" by ... evaluations of demeanor evidence and of
responses to questions..." Rosales-Lopez v. United States,
451 U.S. at 188.

An attempt to make a determination of a Batson issue
after the trial is over and the jury is dismissed will deprive the
fact finder of the majority of the components he needs to
make a reliable credibility decision. Such unreliability ought
to militate against retroactive application of Batson since the
administration of justice will be disrupted without gaining
any truly reliable determinations of the existence of Batson
violations.

9A transcript of the voir dire may not even exist in many cases. See,
for instance N.C. Gen. Stat. § 15A-1241(a)(1) (1983).

22

As shown, retroactive application of Batson will work
a hardship on prosecutors and courts in reconstructing long
finished voir dires and explaining prior actions. The retroac.
tive application of Batson will also work a considerable
hardship on another extremely important segment of the
System - the victims and witnesses of the crimes.

This Court, in both Morris y. Slappy, 461 U.S. 1
(1983) and United States v. Hastings, 461 U.S. 499 (1983).
recognized that the rights of victims and witnesses to be free
of the renewed trauma of a retrial was an important consid-
eration to weigh in determining when to use the Court’s
Supervisory powers. As stated in Morris vy. Slappy, supra:

..In the administration of criminal justice,
courts may not ignore the concerns of vic-
tims...this is especially so when the crime is
one calling for public testimony about a
humiliating and degrading experience
...Precisely what weight should be given to the
ordeal of reliving such an experience...need
not be decided now; but that factor is not to be
ignored by the courts. The Spectacle of
repeated trials to establish the truth about a
single criminal episode inevitably places
burdens on the system in terms of witnesses.
records, and fading memories, to Say nothing
of misusing judicial resources.” 461 U.S. at
15.

In retroactivity decisions, since the Constitution
neither requires nor prohibits retroactive application of a
ruling, the Court must engage in a balancing of interests. In
looking at the impact on the administration of justice compo-
nent, this Court should give great weight to the impact of
retroactive application of this case to the truly innocent
persons in the justice system - the victims of the crime and
their families and the witnesses who will once more have to
interrupt their lives and try to recall events they would
probably rather forget. Sparing the victims and witnesses the
agony of retrial should be an important component of this
Court’s weighing the effect of Batson on the administration
of justice, especially since, as argued earlier, the new

constitutional rule has only a minimal impact on the truth
finding fuction of a trial. Analysis of the third consideration
in the Stovall test, like the first two considerations, clearly
Supports a finding by this Court that Batson ought not be
applied retroactively to cases on direct appeal.

CONCLUSION

For nearly twenty years the States followed what they
reasonably believed to be the holding in Swain in using
peremptory challenges during jury selection. Policy consid-
erations require that the States’ good faith reliance in Swain
be accorded deference since a retroactive application of this
case will require many retrials. Since Batson represents such
a clear break from prior precedent and since the rule in
Batson will have minimal effect on the truth finding process,
the amici request that this Court not apply Batson retroac-
tively to cases still pending on direct appeal.

Respectfully submitted,
LACY H. THORNBURG

Attorney General

Joan H. Byers
Special Deputy Attorney General

N.C. Department of Justice
P. O. Box 629

Raleigh, NC 27602
919-733-6012

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0212%3A11. Public record. Not legal advice.